Madhya Pradesh High Court
Onkar Patel @ Omkar vs The State Of M.P. on 18 August, 2020
Equivalent citations: AIRONLINE 2020 MP 958
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
S. B. : Hon'ble Shri Justice Rajendra Kumar Srivastava
Cr.A.No.1046/1998
Onkar Patel @ Omkar
Vs
The State of M.P.
----------------------------------------------------------------------
Ms. Shushila Paliwal, learned amicus curiae for the
appellant.
Shri Sharad Singh Baghel, learned P.L. for the respondent-
State.
JUDGMENT
(18 .08.2020) This appeal under Section 374(2) of the Criminal Procedure Code is filed by the appellant/accused being aggrieved by the judgment and finding dated 19.03.1998 passed by learned Special Judge (Scheduled Caste & Scheduled Tribe), Jabalpur, District-Jabalpur in Special Criminal Case No.173/1997, whereby the appellant/accused was convicted under Section 3(1)
(xi) of SC/ST Act and sentenced him to undergo R.I. for 01 year with fine of Rs.500/-, in default of payment of fine further R.I. 2 Cr.A.No.1046/1998 for two months and Section 323 of the IPC and fine of Rs.700/- in default of payment of fine, additional R.I. for 03 months.
2. According to prosecution case, on 13.07.1997 at about 10:00 pm, when complainant-(PW-2) was alone in her house then present appellant entered into her house and tried to outrage her modesty. On her shriek, present appellant slapped her and also pressed her chest with bad intention. Thereafter, her husband Rajkumar Kori (PW-1) and Ravishankar (PW-3) reached there then present appellant ran away from the spot. Complainant (PW-2) narrated the whole incident to her husband, namely Rajkumar Kori (PW-1) and Ravishankar (PW-3). Thereafter, on the report of the complainant (PW-2), a case has been registered against the present appellant on 14.07.1997 for the alleged offence.
3. Initially, vide Ex.P/1, the police has registered the FIR for the offence punishable under Sections 354, 323 and 506 of the IPC, but after investigation police filed charge- sheet by adding the offence of Section 451 of the IPC as well as Section 3(1)(xi) of the SC/ST Act. Spot map was prepared as Ex./P-2 and during investigation, statements of witnesses have been recorded. Dr. G.K. Chourasiya (PW-6) examined 3 Cr.A.No.1046/1998 complainant (PW-2) and prepared report as Ex./P-3. Thereafter, police has arrested the present appellant as Ex.P/4. Complainant is a member of Scheduled Caste, so police has obtained her caste certificate as Ex.P/5. The learned trial Court has framed the charges for the offence punishable under Section 323 and 506 of the IPC as well as Section 3(1)(xi) of the SC/ST Act. In trial, the appellant has abjured his guilt, thus, the trial Court proceeded further with the trial. Prosecution has examined as many as 07 prosecution witnesses whereas defence has examined 02 witnesses in his favour. After evaluating the evidence available on record, learned trial Court found the appellant guilty for the aforesaid offence and sentenced him as aforesaid.
4. Learned counsel for the appellant submits that the judgment passed by the learned trial Court is bad in law and deserves to be set aside. Learned trail Court did not appreciate the evidence in proper prospective. There are material contradictions and commission available in the evidence of the prosecution witnesses. She further submits that the complainant and her husband used to borrow goods from the shop of appellant and on demanding money, the complainant registered a false case against him. As per 4 Cr.A.No.1046/1998 prosecution, the incident was occurred in the night of 13.07.1997, but the FIR was registered on 14.07.1997 at about 09:30 am. Prosecution has not dully explained the reason of delay in lodging the FIR. She further submits that while lodging the FIR, the complainant did not allege that the appellant/accused is a member of which community in SC/ST, which is necessary ingredient to constitute the offence under SC/ST Act. Further, in FIR and statement recorded under Section 161 of Cr.P.C. the complainant also did not state about her caste, but later on, the police has added the said fact which is clearly reflected from the statement. The learned trial Court also failed to consider the evidence adduced by Surat Lal (DW-1) who stated that the husband of complainant (PW-
1) was in intoxicated condition and beaten the complainant for lodging the FIR against the appellant/accused forcefully. Therefore, the impugned judgment deserves to be set aside. In support of her contention, she relied on the judgment of Devi Prasad Vishwakarma Vs. State of M.P. reported in I.L.R. (2009) M.P. 1140.
5. On the other hand, learned P.L. for the respondent-State opposes the submission of appellant's counsel submitted that the learned trial Court has appreciated 5 Cr.A.No.1046/1998 each and every facts of the case. The prosecution witnesses are dully stable with their version, hence, the judgment does not require any interference of this Court.
6. Heard both the parties and perused the record.
7. Before adverting to the facts of the case, I find it necessary to reproduce the provision of Section 3(1)(xi) of SC/ST Act. It is pertinent to mention that the offence was occurred in the year 1997 and Sub-section 1 of Section 3 has been substituted by the Act No.1 of 2016. Prior to substitution, Section 3(1)(xi) stood as under :-
"3. Punishment for offence of atrocities-
(1) Whoever not being a member of a Scheduled Caste or a Scheduled Tribe-
** ** **
** ** **
(xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonor or outrage her modesty.
8. In the case of Gorige Pentaihah Vs. State of A.P. reported in (2008) 12 SCC 531, it is held by the Hon'ble Apex Court that to bring home the case under the provision of SC/ST Act, the complainant ought to have alleged that the accused is not a member of SC/ST community. The relevant para is quoted herein under :
"6. In the instant case, the allegation of Respondent 3 in the entire complaint is that on 27-5-2004, the appellant abused them with the name of their caste. According to the basic ingredients of Section 3(1)(x) 6 Cr.A.No.1046/1998 of the Act, the complainant ought to have alleged that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he (Respondent 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate Respondent 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law."
9. Further, in the case of Mahendra Bhatt Vs. of State of Uttarakhand, reported in 2018 SCC OnLine Utt 1022, the High Court of Uttarakhand has followed the Gorige Pentaihah's case and held as under :
"5. I find force in the argument put forth on behalf of the accused applicants inasmuch as a bare perusal of the FIR itself reveals that there is no mention whatsoever in the said FIR that the accused applicants are not the members of the Scheduled Case or Scheduled Tribe community and the complainant and his brother were intentionally insulted or intimidated with intent to humiliate them within public view.
6. It is settled law that when the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the accused applicants to face the criminal trial under Section 3(1)(x) of the SC/ST Act would be totally unjustified leading to abuse of process of law."7 Cr.A.No.1046/1998
10. In the present case, on perusal of FIR as well as statement of complainant, there is no mention that the appellant/accused is not a member of Scheduled Caste or a Scheduled Tribe Community. There is also no allegation regarding caste remark against the appellant/accused. Therefore, the conviction of the appellant/accused under SC/ST Act is against the sprit of mandate of Hon'ble Supreme Court in above refereed case.
11. Apart from this, there is no material available on the record on which it can be said that prosecutrix is a member of Scheduled Caste community. Prosecution has filed caste certificate as vide Ex/P-5 which is issued by Sarpanch but Sarpanch has not been produced as witness in the trial Court, moreover, no witness has deposed before the trial Court that prosecutrix belongs to Scheduled Caste community. In this regard, in the case of Mukesh Vs. State of M.P. reported in 2016 (3) MPWN 106, the Co-ordinate Bench of this Court has held as under :-
"7. With regard to the conviction recorded for the offence punishable under Section 3(1)(xi) of the Act, it is seen from the record that the prosecution attempted to prove the foundational ingredients of the victim being a member of the SC and ST community by caste certificate issued by the Councillor Smt. Vinita Jain of Ward No.2 of Nagar Panchayat Mungaoli, dated 8 Cr.A.No.1046/1998 16.10.2002, Ex.P-5, which was sought to be proved by the Investigating Officer Smt. Suman Gurjar (PW-5)
8. The said certificate is of no avail to the prosecution as it has not been issued by the competent authority. After the decision of the apex Court in the case of Ku. Madhuri Patil v. Addl. Commissioner Tribal Development, reported in AIR 1995 SC 94, laying down the forum and procedure for assailing caste/tribe status, detailed instructions have been issued by the State of M.P. vesting the power of issuance of caste/tribe certificate upon Revenu Officer not below the rank of Deputy Collector as mandated by rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (for short, 'Rules') framed by the Central Government. The Councillor of Nagar Panchayat has no authority to issue such certificate and therefore the said certificate is of no avail to the prosecution for establishing that the victim was a member of SC/ST Community. As such, the foundational ingredients of offence under Section 3(1)(xi) of the Act of victim belonging to SC/ST Community having not been established, the said offence is not made out and therefore conviction and sentence in regard to this offence is wholly unwarranted."
12. Therefore, in the absence of abovesaid necessary requirements, it is also not proved that the prosecutrix belongs to Scheduled Caste community. In the case of Hukum Singh Vs. State of M.P. reported in 2003 (II) MPWN 79 the Bench of this High Court has held that victim must be proved to be belonging to Scheduled Caste or Scheduled Tribe by substantive evidence. Further, in the case of Shankarlal Vs. 9 Cr.A.No.1046/1998 State of MP reported in 2004(II) MPWN 141, the Bench of this High Court has held as under :-
"In order to establish the charge under the aforesaid section, it is essential to prove that the prosecutrix belongs to Scheduled Caste or Scheduled Tribe community and criminal force was used on her by a person who is not a member of Scheduled Caste or Scheduled Tribe community. In the present case, the prosecution has not led any evidence to the effect that the caste, to which the prosecutrix belongs, is included in the scheduled caste or scheduled tribe. Learned counsel for the State has submitted that the accused-appellant has admitted in his examination under section 313 of the Criminal Procedure Code that prosecutrix is 'Chamar' by caste. He has not challenged the caste of the prosecutrix. Therefore, prosecution was no obliged to lead any evidence regarding the fact whether the prosecutrix belonged to SC or ST community or not.
In the testimony of prosecutrix (PW-1), it is said that she is 'Chamar' by caste and the appellant has admitted this fact, she has not said that she is a member of SC or ST or whether her caste is included in the list of SC caste. Her husband (PW-2) has deposed that he is "Suryawanshi Chamar" by caste. The prosecution has not led any evidence to the effect that " Suryawanshi Chamar" is the caste which has been included in the list of SC or ST. In the absence of any such evidence, this fact cannot be taken for granted that prosecutrix belongs to the SC or ST community. As being one of the essential ingredients, this fact was required to be proved beyond any reasonable doubt by the prosecution.
Assuming that it is established that the prosecutrix belongs to SC or ST, still it is difficult to hold that the offence under section 3(1)(xi) of the Act is established. There is no evidence to show that the appellant used criminal force to the prosecutrix to outrage her 10 Cr.A.No.1046/1998 modesty only because she belonged to a particular caste or community. There is no such circumstance to suggest that her modesty was intended or tried to be outraged, simply because she belonged to a particular community. It is thus clear that the ingredients of section 3(1)(xi) of the Act is not proved and conviction of the appellant under section 3(1)(xi) of the Act deserves to be set aside. The ingredient of the offence punishable under section 506 of Indian Penal Code has also not been proved. The so called threat given by the appellant does not appear to be real in the sense. There is no circumstance to suggest that appellant meant what he said. There is also no evidence that the victim of the threat felt threatened actually. The conviction of the appellant under section 506 of Indian Penal Code is also not maintainable and deserves to be set aside."
13. As far as merits of the case is concerned, complainant (PW-2) stated that when the incident was occurred she and her mother-in-law were in the house. In her cross-examination she admitted that she cried loudly, but her mother-in-law did not reach on the spot. It appears that the mother-in-law was present in adjacent room. The mother-in- law of the complainant has not been produced before the trial Court for recording her statement. If she could have cried then her mother-in-law naturally would have come on the spot. So it appears that at the time of incident she did not raise any alarm, therefore, her evidence is not natural.
14. The other witness Rajkumar Kori (PW-1) who is husband of complainant (PW-2) reached on the spot along 11 Cr.A.No.1046/1998 with his friend namely Ravishankar (PW-3). According to them, they saw the appellant/accused coming from the badi in the house of Rajkumar Kori (PW-1) but neither they raised alarm nor tried to chase the appellant/accused. They did not depose before the trial Court that they heard noise of complainant (PW-2). Further, they deposed before the trial Court that when they saw the appellant/accused coming from the badi of Rajkumar's house (PW-1)/husband of the complainant (PW-2) at that time they were present in courtyard (Parchi) of the house of Rajkumar (PW-1), so it is unlikely that they would have seen the appellant/accused coming from Badi of the house of Rajkumar (PW-1) and at that time they were present. Rajkumar (PW-1) also did not disclose this incident to any neighbour. So, the evidence of Rajkumar (PW-1) is also unnatural.
15. In the case of Gopal Singh and Others Vs. State of MP reported in (2010) 6 SCC 407, the Hon'ble Supreme Court has held as under :-
"25. We also find that the High Court has accepted the statement of Feran Singh, PW 5 as the eyewitness of the incident ignoring the fact that his behaviour was unnatural as he claimed to have rushed to the village but had still not conveyed the information about the incident to this parents and others present there and had chosen to disappear for a couple of hours on the 12 Cr.A.No.1046/1998 specious and unacceptable plea that he feared for his own safety."
16. Learned counsel for the appellant/accused further submits that complainant (PW-2) is tutored witness as she was tutored by her engaged lawyer before recording of the evidence, so her evidence is doubtful and not wholly reliable. Complainant (PW-2) denied the suggestion and stated that she and her husband did not engage any counsel in the case, but it is evident from the record that complainant (PW-2) had engaged her counsel prior to giving the evidence before the trial Court. In the case of Devi Prasad Vishwakarma Vs. State of M.P. reported in I.L.R. (2009) M.P. 1140, it is held that allegations are very easy to state but very difficult to revert. So, the evidence of the complainant (PW-2) is not wholly reliable, some corroboration is necessary in this regard.
17. As per statement of Ravishankar (PW-3) he used to come to house of the complainant and there were some money transaction is going on between them, Ravishankar (PW-3) had to take some money from the Rajkumar (PW-1) and on the date of incident, he reached in the house of Rajkumar (PW-1), but he found that his mother was sleeping, so he could not get money. Ravishankar (PW-3) was resident 13 Cr.A.No.1046/1998 of another village and he was a chance witness of the said case. Rajkumar (PW-1) has accepted his friendship with Ravishankar (PW-3), but he did not depose the fact that Ravishankar (PW-3) came to his house to take money, he only deposed that Ravishankar (PW-3) came to his house while returning back from the village Kachnari and he stayed in his house. So, his presence on the spot at the time of incident is doubtful. In the case of Jarnail Singh and Others Vs State of Punjab reported in 2009(9) SCC 719, the Hon'ble Apex Court has laid down the principle regarding evidence of chance witness and held as under :-
"22. The evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence (Satbir v. Surat Singh (1997) 4 SCC 192, Harjinder Singh v. State of Punjab (2004) 11 SCC 253, Acharaparambath Pradeepan v. State of Kerala (2006) 13 SCC 643 and Sarvesh Narain Shukla v. Daroga Singh (2007) 13 SCC 360). Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (vide shankarlal v. State of Rajashthan (2004) 10 SCC
632.
23. Conduct of the chance witness, subsequent to the incident may also be taken into consideration particularly as to whether he has informed anyone else in the village about the incident..................."
18. Further, as far as evidence of Shyamlal (PW-4) is concerned, he was a Kotwar at the time of incident and in his 14 Cr.A.No.1046/1998 cross-examination he admitted the fact that prior to this incident, in relation to another incident of theft, the appellant has lodged the report against the son of Shyamlal (PW-4) and some quarrel took place between him and appellant/accused. Hence, there was unpleasant relationship found between the appellant and Shyamlal (PW-4). As far as evidence of Keshlal (PW-5) is concerned, he is maternal uncle (mama) of the complainant (PW-2) and he got informed about the incident by the complainant (PW-2) and Rajkumar (PW-1), but it is already found in above paras that the evidence of Rajkumar (PW-1) and complainant (PW-2) are not reliable.
19. The appellant/accused has also examined two defence witnesses, namely Suratlal (DW-1) and Rajaram (DW-2). Suratlal (DW-1) deposed that the mother of the Rajkumar (PW-1) came to him then he went to the house of Rajkumar where the complainant (PW-2) told him that Rajkumar (PW-1) is beating her for stating against the present appellant/accused. In his cross-examination he denied the suggestion being relative of the appellant/accused. Rajaram (DW-2) has deposed that Rajkumar (PW-1) borrowed some goods from the shop of appellant/accused and appellant/accused was demanding sum from the Rajkumar 15 Cr.A.No.1046/1998 (PW-1). In the case of Keshardan v. State of M.P. reported in 2005 (3) MPLJ 550 the Bench of this High Court held that credence to the evidence of defence witness should be given in same manner as it is being given to prosecution witness. The relevant para is quoted as under :-
"9.Apart from this, there is merit in the contention of the learned counsel for the appellant that at the relevant point of time the appellant was not present at the spot. In this context he has invited my attention to the testimony of D.W. 1 Narayanlal and D.W. 2 K.S. Rathore. Both these persons are Government officials under whom the appellant was working. Both of them in single voice have stated that on the relevant day appellant was assigned the duty to administer polio drops to innocent children of village Nayapura of Tahsil Manasa. It is well settled in law that credence to the evidence of defence witnesses should be given in the same manner as it is being given to prosecution witnesses. Merely the defence has examined witnesses in order to prove that the appellant is innocent, testimony of those witnesses cannot be thrown like waste paper in the dust bin. On going through statements of these witnesses, I am of the view, that their evidence is clear, cogent and trustworthy. Learned Govt. Advocate could not point out how and in what manner testimony of these witnesses should be disbelieved. These witnesses are Government Officers and on the basis of the record which they were possessing stated that on the ad idem (27-2-2000) appellant was on duty as he was administering polio drops to the children and if that is the position, according to me, since appellant was not present at the spot, whole story of the prosecution becomes doubtful. .16 Cr.A.No.1046/1998
20. Dr. G.K. Chourasiya (PW-6) examined complainant (PW-2) and found one contusion on left part of her face, but in this regard Surat Lal (DW-1) deposed before the trial Court that complainant (PW-2) told him that her husband i.e. Rajkumar (PW-1) beaten her, so in this regard his evidence cannot be rejected and toto.
21. In view of forgoing discussion, I am of the considered opinion that the findings recorded by the learned trial Court cannot be sustained because prosecution has failed to prove his case beyond reasonable doubt. So, it is not proved that appellant/accused committed any offence.
22. Therefore, in absence of the basic ingredients of the offence under SC/ST Act as well as Section 323 of the IPC and in lack of merits of the case, this appeal is allowed and the impugned judgment dated dated 19.03.1998 passed by learned Special Judge (Scheduled Caste & Scheduled Tribe), Jabalpur, District-Jabalpur in Special Criminal Case No.173/1997 is hereby set-aside. Consequently, the appellant/accused is acquitted from the offence of Section 3(1)(xi) of the SC/ST Act and Section 323 of the IPC. His bail bond stands discharged and fine amount if any deposited by the appellant/accused shall be returned.
17Cr.A.No.1046/1998
23. I appreciate the assistance provided by learned amicus curiae. Registry is directed to send the copy of this judgment to legal service authority so that remuneration be paid to learned amicus curiae for his valuable legal assistance.
(Rajendra Kumar Srivastava) Judge sp Digitally signed by SAVITRI PATEL Date: 2020.08.18 17:38:38 +05'30'